CITY OF KALAMAZOO v. DEPARTMENT OF CORRECTIONS

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CITY OF KALAMAZOO v.
DEPARTMENT OF CORRECTIONS

March 31, 1998
No. 198027

CITY OF KALAMAZOO,

Plaintiff-Appellant,

v

Kalamazoo Circuit Court

DEPARTMENT OF CORRECTIONS, LC No. 93-000860-AZ

Defendant-Appellee. AFTER REMAND

Before: White, P. J., and Cavanagh and Reilly, JJ

PER CURIAM.

After a bench trial, the trial court issued a judgment
dismissing plaintiff’s action on its merits. Plaintiff appeals as
of right. We reverse.

This case, which is before us for a second time, arises out of
plaintiff’s opposition to defendant’s placement of a community
corrections center within the City of Kalamazoo. In March of
1993, plaintiff filed a complaint for injunctive and declaratory
relief seeking to prevent defendant from following through on its
announced plans to locate a new community corrections center on
the grounds of the Kalamazoo Regional Psychiatric Hospital.
Plaintiff relied, in part,[1]on § 1005 of 1992 PA 163, the
general appropriations bill for the Department of Corrections for
1993, which provided:

The department shall not locate a new community
corrections center in a residential neighborhood unless the
location of the proposed community corrections center has the
support of the local unit of government in whose jurisdiction
the community corrections center is proposed to be located.
If the local unit of government does not give its support for
that location, the local unit of government shall provide an
alternative site within the local governmental unit’s
jurisdiction for the proposed community corrections center.
[1992 PA 163, § 1005.]

Plaintiff’s complaint alleged that the proposed site was in a
residential neighborhood, that plaintiff had expressed its
opposition to the proposed site, and that plaintiff had suggested
an alternate site within the City of Kalamazoo. After a hearing
on plaintiff’s motion for a preliminary injunction, the trial
court dismissed the portion of plaintiff’s complaint that relied
on § 1005. The trial court reasoned that § 1005 was
unconstitutional under the Title-Object Clause of the state
constitution, Const 1963, art 4, § 24. After the trial court
entered a final order, and defendant transferred inmates into the
proposed community corrections center, plaintiff appealed as of
right and this Court reversed. See Kalamazoo v Dep’t of
Corrections, 212 Mich App 570; 538 NW2d 85 (1995). On remand,
after a bench trial, the trial court again dismissed plaintiff’s
cause of action and this appeal followed.

On appeal, plaintiff argues that the trial court erred when it
failed to follow this Court’s prior ruling on the issue of the
scope of defendant’s authority regarding the placement of the
challenged community corrections center. We agree. This Court
reviews questions of law de novo. Shurlow v Bonthuis, 218
Mich App 142, 148; 553 NW2d 366 (1996).

The law of the case doctrine provides that "if an
appellate court has passed on a legal question and remanded the
case for further proceedings, the legal questions thus determined
by the appellate court will not be differently determined on a
subsequent appeal in the same case where the facts remain
materially the same." CAF Investment Co v Saginaw Twp,
410 Mich 428, 454; 302 NW2d 164 (1981). Likewise, a trial court
may not take any action on remand that is inconsistent with the
judgment of the appellate court. Sokel v Nicoli, 356 Mich
460, 464; 97 NW2d 1 (1959); VanderWall v Midkiff, 186 Mich
App 191, 196; 463 NW2d 219 (1990). Thus, as a general rule, a
ruling on a legal question in the first appeal is binding on all
lower tribunals and in subsequent appeals. See Driver v Hanley
(After Remand), ___ Mich App ___, ___; ___ NW2d ___ (1997),
at ___; Poirier v Grand Blanc Twp (After Remand), 192 Mich
App 539, 546; 481 NW2d 762 (1992). The law of the case doctrine
applies only to questions actually decided in the prior decision
and to those questions necessary to the court’s prior
determination. Poirier, supra at 546. The rule
applies without regard to the correctness of the prior
determination. Driver (After Remand), supra at slip
op p 3; Bennett v Bennett, 197 Mich App 497, 504; 496 NW2d
353 (1992). The primary purpose of the rule is to maintain
consistency and avoid reconsideration of matters once decided
during the course of a single lawsuit. Bennett, supra
at 499-500. Finally, the law of the case doctrine does not
operate as a limitation on the power of appellate courts, but
rather as a discretionary rule of practice. See Locricchio v
Evening News Ass’n, 438 Mich 84, 109; 476 NW2d 112 (1991).

In the first appeal of this case, a panel of this Court held
that § 1005 of 1992 PA 163 was not unconstitutional under the
Title-Object Clause, that § 1005 placed a condition on
defendant’s use of appropriations for community corrections
facilities, and that the trial court erred in dismissing
plaintiff’s complaint. Kalamazoo, supra at 571-573.
Addressing an alternative ground argued by defendant in support
of the trial court’s dismissal, this Court also held:

[T]here is no question in this case that the Legislature
expressly intended, through the inclusion of § 1005 in the
appropriations act, to require that the Department of
Corrections receive the support of a local unit of government
before placing a community corrections center. [Id.
at 573-574 (footnote omitted; emphasis added).]

In support of this holding, the Kalamazoo Court
distinguished Dearden v Detroit, 403 Mich 257; 269 NW2d
139 (1978), a case in which the Michigan Supreme Court held that
the authority of the Department of Corrections was not subject to
municipal zoning ordinances passed pursuant to the zoning
enabling act. Kalamazoo, supra at 573-574. The Kalamazoo
Court reasoned that, unlike the zoning enabling act at issue in Dearden,supra at 266-267, the language of the appropriations act
at issue in this case contained an expression of legislative
intent to restrict the exclusive jurisdiction of the Department
of Corrections. See Kalamazoo, supra at 573-574.

On remand, however, the trial court ruled that the
Legislature’s clear intent was to give the Department of
Corrections complete control over the placement of its
facilities. In so ruling, the trial court relied on Dearden,supra, and on appropriations bills passed in 1993 and
1994, which contained language somewhat different than that
contained in § 1005 of 1992 PA 163. The trial court explained
it’s decision as follows:

Like the case of Dearden v City of Detroit, 403
Mich [257] (1978), the ultimate question is one of
legislative intent. Our [L]egislature has demonstrated
clearly, through revisions in appropriations bills subsequent
to that on which plaintiff relies, and subsequent to Dearden,
that the Department of Corrections has the power to control
siting of its facilities. But for this clear expression of
legislative intent, plaintiff may have prevailed; but in the
face of it, it cannot.

Plaintiff relies on the above quoted language of the 1992
appropriations bill. Defendant, however, correctly points out
that this language has undergone repeated, and significant
revision. In 1993 this section was changed to read: "It
is the legislature’s intent that the department avoid
locating a new community corrections center in a residential
neighborhood unless the location . . . has the support of the
local unit of government . . . . If (it) does not give its
support for that location, (it) shall provide an alternative site
. . . ."

Again in 1994 this language was modified further enhancing the
discretion of the department. It reads: "It is the
legislature’s intent that the department avoid
locating a new community corrections center in a residential
neighborhood unless the location . . . has the support of the
local unity [sic] of government . . . . If the local unit of
government does not give its support for that location (it) shall
provide an alternative site that is acceptable to the
department."

This interpretation of the extent of the power to site which
the [L]egislature has evidenced it intends to extend to the
department through its appropriation process is consistent with
the extent of the jurisdiction granted to the department as
interpreted by Dearden. The court read that statute (MCL
791.204) as "a clear expression of the Legislature’s intent
to vest the department with complete jurisdiction over the
state’s penal institutions, subject only to the constitutional
powers of the executive and judiciary, and not subject in any way
to any other legislative act . . . . This language evidences a
legislative intent to nullify the effect of any other statute
which is inconsistent with the department’s exclusive
jurisdiction over the state’s penal institutions as granted in
this act." (Page 265-266).

Finally, it should be noted in passing that at the final
hearing on this matter, no evidence showed that any of the
proffered sites were acceptable to the department.

For these reasons, plaintiff’s complaint must be dismissed.
Defendant shall prepare an order consistent with this opinion.

By revisiting the issue of legislative intent, ignoring the
fact that a panel of this Court had already distinguished Dearden,supra, and ultimately ruling that defendant’s authority to
control the placement of the community corrections center was not
subject to the express condition contained in § 1005 of 1992 PA
163, the trial court failed to follow the law of the case
established in plaintiff’s first appeal.

An exception to the law of the case doctrine applies where
there has been an intervening change in the law. Freeman v DEC
Int’l, Inc, 212 Mich App 34, 38; 536 NW2d 815 (1995); Bennett,supra at 503. For the exception to apply, the change of
law must occur after the initial decision of the appellate
court. Freeman, supra at 38. A change of law that
occurs after the trial court’s decision but before the appellate
court’s initial decision does not prevent application of the law
of the case doctrine, because the proper remedy in that instance
is either a petition for rehearing before the trial court or an
appeal to a higher court. Id. In this case, the trial
court on remand relied on portions of the two appropriations acts
passed in the years immediately following the passage of 1992 PA
163. However, for two reasons the trial court’s reliance on these
subsequent appropriations acts does not trigger the
"intervening change in law" exception to the law of the
case doctrine.

First, there was no change in the relevant law. Plaintiff’s
complaint was based on § 1005 of 1992 PA 163, which, as this
Court explained in plaintiff’s first appeal, "places a
condition on defendant’s use of appropriations for community
corrections facilities." Kalamazoo, supra at
572. With certain constitutional limitations, the Legislature may
place conditions on the receipt of appropriations. See Lewis v
State, 352 Mich 422, 430; 90 NW2d 856 (1958); Board of
Agriculture v Auditor General, 226 Mich 417, 425; 197 NW 160
(1924); Kalamazoo, supra at 572. When an
appropriation made subject to a constitutionally valid condition
is accepted, the condition becomes binding on the party receiving
the appropriation. See Regents of the University of Michigan v
Michigan, 395 Mich 52, 65; 235 NW2d 1 (1975); Board of
Regents of the University of Michigan v Auditor General, 167
Mich 444, 451; 132 NW2d 1037 (1911). Accordingly, assuming
defendant used funds from the 1993 appropriation (1992 PA 163)
for the community corrections facility at issue, defendant was
bound by the condition contained in § 1005 of 1992 PA 163, the
act at issue, regardless of the language contained in the
subsequent appropriations.[2]

Second, the "change" in the language of the
appropriations acts referred to in the trial court’s opinion
occurred before the initial decision of the appellate court.
Plaintiff’s first appeal was submitted to this Court on May 10,
1995. Accordingly, the prior panel of this Court either (1) did
not consider the appropriations acts passed in 1993 and 1994, or
(2) considered them and determined them to be irrelevant. In
either event, the prior panel’s determination should not be
disturbed. See Bennett, supra at 500-501.
Therefore, because the law of the case established in plaintiff’s
first appeal, is that § 1005 of 1992 PA 163 placed a condition
on defendant’s use of appropriated funds for community
corrections facilities, see Kalamazoo, supra at
572-574, we hold that the trial court erred when it ruled that
defendant’s authority to control the placement of the community
corrections center at issue was not subject to the condition
contained in § 1005 of 1992 PA 163.

Finally, plaintiff contends that it is entitled to the
injunctive relief requested in its complaint. However, because
the trial court did not make findings of fact with respect to the
issue of defendant’s compliance with § 1005 of 1992 PA 163, we
cannot order the relief requested by plaintiff. Instead, we
remand for proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Helene N. White
/s/ Mark J. Cavanagh
/s/ Maureen Pulte Reilly

FOOTNOTES:

[1]Plaintiff also claimed that the
proposed community corrections center would be a nuisance. This
claim was dismissed without prejudice pursuant to a stipulation
by the parties prior to plaintiff’s first appeal as of right.

[2]
We do not address the question whether the Legislature could, if
it chooses, resolve the matter by enacting other legislative
provisions not at issue here.